Old-fashioned, time consuming detective work is necessary to collect social media evidence.

Utilizing social media evidence strategically, whether gathered informally or by motion, can assist you in quickly resolving your case.

When properly admitted into evidence, social media can injure a litigant’s credibility at trial and greatly affect the outcome of a case in your client’s favor.

Social media is all around us. Learning about social media and incorporating it into your litigation strategy is imperative, whether we like it or not. This article discusses uncovering, authenticating and utilizing social media in litigation.

Unearthing a litigant’s social media is often a daunting task. Occasionally, luck plays a role in successful, modern surveillance. However, more frequently, careful preparation leads to better results. Before beginning your online search, gather as much information as you can about the litigant: full legal name, nicknames, addresses, email addresses, date of birth and family members’ names. Good sources for this information include the Complaint, White Pages, medical records, new patient/intake forms and the AOPC webpage/criminal docket. Use this information to search for the litigant’s social media accounts directly on Google or Facebook. If you do not find anything useful, consider using a “deep web” search engine like www.pipl.com. Also, several third-party vendors perform this type of “social media search” for a fee. However, experience has taught us that, even if you retain a third-party vendor, there is no substitute for searching by yourself.

Timing is everything—search early and search often. Consider performing social media searches as soon as you open a new file, and again at weekly or monthly intervals, depending on the volume of a litigant’s posts. Print a copy (in color if possible) or save an electronic copy of the litigant’s social media page. You will need to use your Snapshot feature later. Do not count on the social media page to be present online the night before your trial or deposition. Litigants who once had public pages tend to change their privacy settings over the course of litigation, likely at the request of their counsel.

Also, use traditional discovery channels to unearth a litigant’s social media. Be ready to encounter your opponent’s objection based on relevancy. “Good faith basis” objections seem to be common given the current state of the law on social media discovery—there are no appellate decisions in the Commonwealth. Trial courts compel production of social media if the moving party shows that there is likely to be discoverable information on the private portion of the account based on the information gathered from the publicly-available information. You can expect a denial of your motion to compel if you have not met this burden. Old-fashioned detective work, described above, proves vital at this stage.

As with any litigation strategy, your approach in collecting and utilizing the information requires forethought. Consider asking a deponent about their social media habits to test their truthfulness and/or extent of social media “use.” Depending on what you learn, you may be able to support a better “argument” for what constitutes a “good faith basis.” Other approaches may better serve your future trial strategy. For example, obtaining the litigant’s denial about being able to perform the activities you viewed them “doing” on their public social media page will bolster your cross examination at trial.

There are at least two ethical considerations. The first—consistent with Pennsylvania Rule of Professional Conduct 8.4—is what an attorney cannot do, or what you cannot ask your assistant or paralegal to do, with regard to locating a litigant’s social media account. A second ethical concern arises when producing the information uncovered. We take the position that is consistent with Pennsylvania appellate case law on traditional surveillance, which is that social media evidence is not discoverable until the plaintiff has been deposed. However, there may be instances where strategy dictates production at varying stages. Social media evidence can be used to bring a case to a resolution. Consider sharing damning information with your opponent in an effort to quickly settle a case. Under other circumstances, consider utilizing simple social media evidence to undermine your opponent’s credibility. When properly structured, these “minor” credibility injuries build up and can win the jury’s opinion in your client’s favor.

When utilizing social media at trial, you will likely encounter an objection based on authenticity. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Pa. R. E. 901(a). A cooperating “owner” of the social media account may satisfy this requirement by testifying that the username/account is his and that he authored the post, or knows who took the photograph (or is shown in the photograph). If you do not anticipate cooperation, consider making an offer of proof concerning the account’s distinctive characteristics and other contextual clues. Pa. R. E. 901(b)(1) and (4). For example, if a litigant discusses a topic about which only he possesses knowledge within the purported social media evidence, that corroborating evidence can be used to show the authenticity of the evidence. Pa. R. E. 901-902. Consider retaining an expert to testify about the electronic properties (metadata - data about data) of a post or photograph. Although a photograph’s individual metadata is stripped upon posting to Facebook, an appropriate expert will be able to testify about the webpage’s or post’s metadata.

Final impediments arise out of the bench/bar’s unfamiliarity and lack of appellate case law on the topic, the potential unreliability of information found and the sheer expense associated with its collection. Despite these barriers, if you can find just one pertinent photograph or post and properly introduce it into evidence, you may be able to alter the trajectory of the case in your client’s favor.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

Choose Area of Practice Invalid Area of Practice is requiredFirst Name Invalid First Name is requiredLast Name Invalid Last Name is requiredE-mail Address Invalid E-mail Address is required

Describe Your Legal Matter

{{ (description ? description.length : 0) + '/1000 characters' }}

Invalid Legal Matter is required

Country Invalid Country is requiredZipInvalidZipis requiredCity/Town/LocalityInvalid City/Town/Locality is requiredState/Province/DistrictInvalid State/Province/District is requiredPhone Number Invalid Phone Number is required Preferred Contact Method

By clicking on the "Submit" button, you agree to the Terms of Use, Supplemental Terms and Privacy Policy. You also consent to be contacted at the phone number you provided, including by autodials, text messages and/or pre-recorded calls, from Martindale and its affiliates and from or on behalf of attorneys you request or contact through this site. Consent is not a condition of purchase.

You should not send any sensitive or confidential information through this site. Emails sent through this site do not create an attorney-client relationship and may not be treated as privileged or confidential. The lawyer or law firm you are contacting is not required to, and may choose not to, accept you as a client. The Internet is not necessarily secure and emails sent though this site could be intercepted or read by third parties.

CONSUMER WEBSITES

The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or should be formed by the use of this site. The attorney listings on the site are paid attorney advertisements. Your access of/to and use of this site is subject to additional Supplemental Terms.